Michael Nathan Bernstein

The appellant was convicted of fraud over $5000 after taking $90,000 from an elderly complainant under the guise of real estate investments.

On appeal, the appellant argued the trial judge failed to properly caution the jury about the dangers of relying on the complainant's testimony, given her prior inconsistent statements at the preliminary hearing.

The Court of Appeal dismissed the appeal, finding the trial judge's instructions on credibility and prior inconsistent statements were adequate and a Vetrovec warning was not required.

The appellant appealed her conviction and sentence for accepting a secret benefit under s. 426(1) of the Criminal Code.

The Court of Appeal dismissed the conviction appeal, finding that the offence is established by proof that an agent accepted a secret benefit and placed themselves in a conflict of interest without alerting their principal, regardless of whether the benefit actually influenced their conduct.

However, the Court allowed the sentence appeal, finding that the trial judge erred in characterizing the offence as a well-planned fraud upon the public purse.

The Court set aside the term of imprisonment and imposed an 18-month conditional sentence, noting the appellant's lack of prior record, full restitution, loss of career, junior role, and cooperation with authorities.

The respondent, whose murder conviction was overturned and a new trial ordered, applied for judicial interim release.

The Crown brought a motion seeking direction on whether the Court of Appeal had jurisdiction under s. 679(7.1) of the Criminal Code to hear the bail application after the respondent had already appeared in the Superior Court.

The Court of Appeal held that it has concurrent jurisdiction with the trial court over bail applications pending a new trial, even after the accused's first appearance in the trial court.

However, given the anticipated length and need for viva voce evidence, the Court declined to hear the application and directed that it be heard in the Superior Court.

The appellant appealed convictions for first degree murder and manslaughter arising from the stabbing deaths of two sisters.

The court held that the trial was unfair due to multiple reversible errors, including the admission of expert evidence that strayed from crime scene staging into inadmissible criminal profiling, the admission and mishandling of prejudicial after-the-fact conduct evidence related to a trip to Jamaica, improper Crown submissions and jury instructions about a supposed false alibi unsupported by any evidence, the introduction in the charge of an additional theory of liability without notice to the defence, and inadequate instructions on weak identification evidence.

The cumulative effect of these errors required a new trial.

Because the Crown did not cross-appeal the manslaughter conviction, the new trial was ordered on first degree murder with respect to one victim and manslaughter with respect to the other.

The appellant was convicted of two counts of first degree murder.

He appealed on four grounds: the trial judge's failure to declare a mistrial due to mid-trial publicity about his prior murder conviction, the admission of discreditable conduct evidence regarding his habit of carrying a knife, the ruling allowing the Crown to cross-examine him on his compelled testimony from a co-accused's trial, and the jury instructions on post-offence conduct.

The Court of Appeal dismissed the appeal, finding no reversible error in the trial judge's rulings or instructions.

The appellant, a black man, was convicted of first-degree murder and attempted murder of two white police officers.

On appeal, he argued that the trial judge erred in limiting his challenge for cause regarding racial bias to a single 'rolled-up' question, rather than allowing multiple questions about racial attitudes.

He also argued the trial judge erred in excusing a prospective juror when the triers could not agree, that the Crown improperly used peremptory challenges to exclude black jurors, and that evidence of his immigration status and criminal record should have been excluded.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's exercise of discretion during jury selection or in the admission of evidence.

The Court held that the peremptory challenge issue could not be raised for the first time on appeal.

The appellant appealed his conviction for second-degree murder in the hatchet killing of the victim.

He argued the trial judge erred in his instructions on consciousness of guilt, the admissibility of tattoo evidence, the Crown's theory of an attack on an unknown victim, and the charge on reasonable doubt.

The Court of Appeal dismissed the appeal, finding that a 'no probative value' instruction for post-offence conduct was not required because the conduct was relevant to identifying the murderer.

The court also held that the pre-Lifchus jury charge on reasonable doubt substantially complied with the required standard.

The appellant was convicted of possession of stolen property and appealed, arguing the trial judge misdirected the jury on the meaning of reasonable doubt.

The trial judge's instruction equated reasonable doubt with an 'honest doubt' and 'fair doubt' without locating the standard above the probability level.

Applying recent Supreme Court of Canada jurisprudence on pre-Lifchus jury charges, the Court of Appeal held the instruction was inadequate and constituted reversible error.

The appeal was allowed and a new trial ordered.

The appellant appealed convictions for criminal negligence in the operation of a motor vehicle and assault with a weapon arising from a confrontation between police and occupiers of a provincial park claimed under an aboriginal treaty right.

The Court of Appeal rejected the argument that the trial judge misapprehended the evidence concerning intent and held the reasons must be read as a whole under the governing appellate framework.

The court further held that the defence of property under s. 41(1) of the Criminal Code was unavailable because the occupiers were not in peaceable possession and the force used by driving at police officers was neither necessary nor proportionate.

The defence of justification under ss. 27 and 30 also failed because the trial judge did not accept that the appellant acted to rescue the arrested band member.

Conviction and sentence appeals were dismissed.

The appellant appealed a jury conviction for counselling murder arising from an alleged arrangement with a co-accused witness to kill a prospective witness in unrelated property offences.

He argued the verdict was inconsistent with acquittals on conspiracy to commit murder and attempted murder, that the jury charge on counselling was flawed, that a prior guilty plea to possession of property obtained by crime was wrongly admitted, and that the Crown’s closing unfairly overstated the target witness’s importance.

The Court of Appeal held the verdicts were not violently at odds because the offences were separately defined and involved materially different elements, the charge as a whole could not have misled the jury, the prior guilty plea was admissible, and the closing address disclosed no reversible error.

The appeal was dismissed.

The appellant appealed a second degree murder conviction arising from an entirely circumstantial prosecution based on motive, forensic evidence, and prior statements attributed to the deceased.

The principal issue was whether the jury charge was deficient for failing to distinguish direct from circumstantial evidence and for using pre-Lifchus language on reasonable doubt.

The court held that no formulaic circumstantial-evidence instruction was required so long as the jury was clearly told that guilt had to be the only reasonable inference proven beyond a reasonable doubt.

The court also held that the Crown's speculative suggestions, the manslaughter instruction, and the cautions concerning hearsay evidence did not cause unfairness warranting a new trial.

The conviction appeal was dismissed.

The appellant challenged the constitutionality of Criminal Code provisions requiring defence counsel to address the jury before the Crown where the defence called evidence.

In a second degree murder appeal involving expert evidence on whether the deceased died by suicide or strangulation, the appellant argued that the order of addresses infringed the rights to make full answer and defence and to a fair trial after the Crown relied on an inference not addressed in the defence closing.

The majority held that ss. 651(3) and (4) do not violate ss. 7 or 11(d) of the Charter because the accused answers the evidence and the Crown’s theory of the case, not the Crown’s final rhetoric, and the order of address is not shown to confer an inherent advantage.

The Court further held that trial judges may cure improper closings through jury instructions and, in the clearest cases of unfairness, may allow a limited reply.

The accused stabbed and killed the deceased during an altercation.

At trial for second degree murder, the accused claimed self-defence.

The trial judge instructed the jury that the self-defence justification under s. 34(2) of the Criminal Code was not available if the accused was the initial aggressor, reading in the words 'without having provoked the assault' from s. 34(1).

The accused was convicted of manslaughter.

The Court of Appeal ordered a new trial.

The Supreme Court of Canada dismissed the Crown's appeal, holding that s. 34(2) is clear on its face and is available to an initial aggressor.

The Court emphasized that ambiguous penal provisions must be interpreted in the manner most favourable to the accused.

The appellants were convicted of keeping a common gaming house after police observed customers playing an Italian card game on their business premises.

The trial judge found no money changed hands, but it was customary for the loser to buy a round of refreshments.

The Court of Appeal upheld the conviction, finding this custom constituted wagering.

The Supreme Court of Canada allowed the appeal, holding that wagering is an essential element of gaming and the custom of the loser purchasing refreshments does not constitute staking as defined by the common law.

An application for leave to appeal to the Supreme Court of Canada was granted.

However, the appeal was subsequently abandoned due to the death of the appellant.